Trump’s ‘National Emergency’ Is a Hot Legal Mess

February 20, 2019

A protester flashes a sign over Interstate 15 in Victorville, California, during a protest against Donald Trump's decision to declare a national emergency. (James Quigg / The Daily Press via AP.)

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You can believe one of two things about Donald Trump’s national-emergency-to-fund-the-wall-neither-Mexico-nor-Congress-will-pay-for. You can believe that the National Emergencies Act (NEA) confers such extreme and far-reaching powers on the president that we’ve actually been living within a hair’s breadth of a dictatorship since 1976, and Donald Trump is the first man smart enough to figure that out. Reagan? Obama? Amateurs! Only Trump has noticed this constitutional kryptonite buried in our own laws, and now we must kneel before him like his name is Zod.

You can believe that, or you can believe that the NEA does not thwart our entire system of democratic self-government. Instead of thinking that Trump is a Machiavellian genius, you can come to the conclusion that he is a tantrumming demagogue whose quest for power is helpfully mitigated by the Constitution, common sense, and his own stupidity.

If you believe the former, then we’re done here; all that’s left are Reichstag-fire references—or defection to the GOP. I, however, choose to believe the latter. The NEA is a poorly written law, but one bad law does not defeat the rest of the Constitution. Subchapter 2 of the statute says that Congress can terminate a national emergency declared by the president by passing a joint resolution. Yes, the president can veto such a resolution (which, on reflection, would be extremely foolish), but Congress can override the president’s veto. Congressional Democrats shouldn’t wait for the courts to bail out the Republicans. Schedule the vote and force Senate Republicans to do the right thing.

Admittedly, I’m not holding my breath. Republicans are already spinning the intellectually dishonest argument that the NEA grants the president dictatorial powers and there’s nothing Congress can do about it. But this is where the courts come in. On February 18, 16 states filed a lawsuit to block the declaration of national emergency. The states argue that Trump’s plan violates the separation of powers, because Congress explicitly didn’t appropriate funding for the wall. They argue that it’s not a real national emergency. And they argue they have the right to sue the president, because he’s stealing funds earmarked for their states for other issues.

There will be a temptation in the media to treat this as a bunch of “legal mumbo jumbo,” with strong arguments from “both sides” as we await a ruling. Don’t believe that narrative. The states are arguing constitutional law. Trump is arguing, “I am the law.” This isn’t a horse race, and if it were, Trump would be yelling “giddyup” at a toy horse between his legs, counting on Brett Kavanaugh to declare him the winner anyway.

Trump is caught in a legal crucible, even if his TV lawyers on Fox News don’t know it. The first reason—and there are many—is a principle called “nondelegation doctrine.” It means that Congress cannot give away its “essential legislative functions” to another branch of government, and there’s nothing more “essential” to Congress’s duties than appropriating funds. Even if Congress wants to give up its power to spend money, and even if the president believes he knows best how money should be spent, courts can tell both branches of government, “That’s not how the separation of powers works. That’s not how any of this works.”

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That’s the kind of “limited government” argument conservative judges should find appealing if they apply their principles instead of their politics. Progressive jurists won’t even need to dig that deep, because they’ll quickly hit on an even-more-basic truth: There is no “national emergency.” The NEA does not define “national emergency”—again, this law is bad—but it also does not convey any specific emergency powers. Instead, the NEA allows the president to invoke emergency powers buried in other laws. Here, Trump wants to steal money for his wall using a provision (10 USC 2808, for those playing along at home) that authorizes the president to move military construction money around in the event of a “declaration of war” or “national emergency.” The code does not give this power for a political “war on” whatever social group he doesn’t like, or a fake emergency; it specifies that the war or emergency is one that “requires use of the armed forces.”

There’s nothing going on at the southern border that requires the use of armed forces. In fact, using armed forces to enforce domestic immigration laws may itself be a violation of the Posse Comitatus Act, which makes it illegal to use the military as a domestic police force.

Everything Trump is doing here is wrong. If anything, we’re being distracted from how clearly wrong this is by the sheer tonnage of illegal actions, all working in concert. It’s like we’re picking through our kitchen garbage, looking for the one thing causing that smell, forgetting that the entire trash bag belongs in a landfill.

Congress or the courts must use their statutory or constitutional authority to block Donald Trump’s illegal power grab. If nobody stops Donald Trump legally, then it’s time to pour into the streets and march south. Tyrants don’t just “go away” because there’s an election soon.

Elie MystalElie Mystal is the executive editor of Above the Law and a contributing writer for The Nation, as well as the legal editor of WNYC's More Perfect. He can be followed @ElieNYC.